172

SUPREME COURT REPORTS ANNOTATED

Brehm vs. Republic

No. L-18566. September 30, 1963.

IN THE MATTER OF THE ADOPTION OF ELIZABETH MIRA, GILBERT R. BREHM and

ESTER MIRA BREHM, petitioners-appellees, vs. REPUBLIC OF THE PHILIPPINES, op-

positor-appellant.

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Brehm vs. Republic

Adoption; Non-resident alien cannot adopt.An American citizen serving the U.S. Navy with

temporary assignment at Subic Bay, is a non-resident alien and cannot adopt anybody in the

Philippines.

Same; When stepfather cannot adopt stepchild.The stepfather of the minor is disqualified to

adopt said stepchild when said stepfather is a non-resident alien.

Statutory Construction; Mandatory provisions prevail over directory ones.Article 335 No. 4, of

the Civil Code is mandatory because it contains words of positive prohibition and is couched in

negative terms importing that the act required shall not be done otherwise than designated. On

the other hand, Article 338, No. 3, of the same Code is merely directory, and can only be given

operation if the same does not conflict with the mandatory provisions of said Article 335.

APPEAL from a decision of the Juvenile and Domestic Relations Court.

The facts are stated in the opinion of the Court.

Pitt Vasquez for petitioners-appellees.

Solicitor General for oppositor-appellant.

PAREDES, J.:

Finding that only legal issues are involved in the instant case, the Court of Appeals certified the

same to this Court for disposition.

Gilbert R. Brehm is an American citizen, serving the U.S. Navy with temporary assignment at

Subic Bay. On October 9, 1958, he married Ester Mira, a Filipino citizen, who had a daughter

Elizabeth, by another man, also of the American Navy, who left the country in 1952, and never

heard from since then. After the marriage, the couple established residence at Intramuros, Manila,

and the minor Elizabeth had always been under their care and support of Brehm.

On January 28, 1959, the spouses filed a Joint Petition with the Juvenile and Domestic Relations

Court for the adoption of the minor Elizabeth, claiming that they have mutually given their

consent to the adoption, not only to promote her best interest and well-being, but also to give her

a legitimate status. They prayed that after the prop-

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SUPREME COURT REPORTS ANNOTATED

Brehm vs. Republic

er proceedings, judgment be entered, freeing the child Elizabeth Mira from all legal obligations

of obedience and maintenance with respect to her natural father, and be, for all legal intents and

purposes, the child of the petitioners, with all the rights pertinent thereto.

An opposition to the petition with respect to Gilbert R. Brehm was registered by the Republic of

the Philippines, it appearing that Brehm testified that his residence in the Philippines was merely

temporary, same being effective only for purposes of his tour of duty with the Navy, thus

disqualifying him from making an adoption (Art. 335 [4], New Civil Code; Sec. 2, Rule 100,

Rules of Court), and that being a non-resident alien, the Court has no jurisdiction over him.

A reply to the opposition was presented by petitioners. They claim that Art. 335 does not apply

in the case, reasoning out that it covers only adoptions for the purpose of establishing a

relationship of paternity and filiation, where none existed, but not where the adopting parents are

not total strangers to said child; that there is already a relation between the child and Brehm,

created by affinity and that Art. 338 of the New Civil Code, expressly authorizes the adoption of

a stepchild by a stepfather, in which category petitioner Brehm falls. Petitioners contend that the

records show their residence is Manila, for while Brehm works at Subic, he always goes home to

Manila, during weekends and manifested that he intends to reside in the Philippines permanently,

after his tour of duty with the U.S. Naval Forces.

The Juvenile & Domestic Relations Court rendered judgment, the pertinent portions of which

read

x x x. Since residence is principally a matter of intention, the Court is of the opinion that

notwithstanding the nature of petitioner Gilbert R. Brehms coming to the Philippines, his

subsequent acts, coupled with his declared intention of permanently residing herein, have cured

the legal defect on the point of residence.

Finally, we must consider the status of the minor Elizabeth Mira whose welfare deserves

paramount consideration. Being

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Brehm vs. Republic

a natural child of the petitioning wife, it cannot be in conscience be expected that when

petitioners married, the mother would reduce her responsibility and her affection toward her

child. x x x.

WHEREFORE, finding that the principal allegations of the petitioners are true, it is hereby

adjudged that henceforth the minor Elizabeth is freed from all obligations of obedience and

maintenance with respect to her natural father, and is, to all legal intents and purposes, the child

of the petitioners Gilbert R. Brehm and Ester Mira Brehm, said minors surname being changed

from Mira to Mira Brehm.

The Solicitor General took exception from the judgment, claiming that it was error for the Court

in adjudging the minor Elizabeth Mira the adopted child of petitioner Gilbert R. Brehm. The

appeal, however, did not assail the right of petitioner Ester Mira Brehm, the natural mother of the

minor, to adopt her.

There is no question that petitioner Gilbert R. Brehm is a non-resident alien. By his own

testimony, he supplied the conclusive proof of his status here, and no amount of reasoning will

overcome the same. For this reason, he is not qualified to adopt. On this very point, We have

recently declared:

The only issue in this appeal is whether, not being permanent residents in the Philippines,

petitioners are qualified to adopt Baby Rose. Article 335 of the Civil Code of the Philippines,

provides that

The following cannot adopt

x x x x x x x x x

(4) Non-resident aliens;

x x x x x x x x x

This legal provision is too clear to require interpretation. No matter how much we may

sympathize with the plight of Baby Rose and with the good intentions of petitioners herein, the

law leaves us no choice but to apply its explicit terms, which unqualifiedly deny to petitioners

the power to adopt anybody in the Philippines (Ellis & Ellis v. Republic, L-16922, Apr. 30,

1963).

Prior to the above decision, We have also denied petitions to adopt by persons similarly situated

as petitioner Brehm. Thus, in the case of Caraballo v. Republic, G.R. No. L-15080, April 25,

1962, giving some reasons why non-resident aliens are disqualified to adopt, We said

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Brehm vs. Republic

x x x. Looking after the welfare of a minor to be adopted, the law has surrounded him with

safeguards to achieve and insure such welfare. It cannot be gainsaid that an adopted minor may

be removed from the country by the adopter, who is not a resident of the Philippines, and placed

beyond the reach and protection of the country of his birth. (See also S/Sgt. Katan-cik, v.

Republic, G.R. No. L-15472, June 20, 1962).

This notwithstanding, petitioners press the argument that Brehm being now the step-father of the

minor, he is qualified to adopt, in view of the provisions of par. 3, Art. 338, Civil Code, which

states

The following may be adopted:

(1) The natural child, by the natural father

(2) Other legitimate children, by the father or mother

(3) A step-child, by the step-father or step-mother.

We should construe, however, Article 338 in connection with Article 335. Art. 335 clearly states

that The following cannot adopt: x x x (4). Non-resident aliens. It is, therefore, mandatory,

because it contains words of positive prohibition and is couched in the negative terms importing

that the act required shall not be done otherwise than designated (50 Am. Jur. 51). On the other

hand, Art. 338, provides the following may be adopted: (3) a step-child, by the stepfather or

stepmother, which is merely directory, and which can only be given operation if the same does

not conflict with the mandatory provisions of Art. 335. Moreover, as heretofore been shown, it is

Article 335 that confers jurisdiction to the court over the case, and before Article 338 may or can

be availed of, such jurisdiction must first be established. We ruled out the adoption of a step-

child by a step-father, when the latter has a legitimate child of his own (Ball v. Rep., 50 O.G.

145; and McGee v. Rep., L-5387, April 29, 1959).

IN VIEW HEREOF, the decision appealed from, in so far as it affects the petitioner Gilbert R.

Brehm, is hereby reversed, and his petition to adopt the child Elizabeth Mira, denied. Without

costs.

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Dizon, Regala and Makalintal,

JJ., concur.

Labrador and Reyes, J.B.L., JJ., took no part.

Decision reversed.

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Capital Insurance & Surety Co., Inc. vs. Delgado

Note.Article 335 of the Civil Code, cited in the above Brehm case, was also construed in

Cathey, et al. v. Republic, L-22170, Sept. 23, 1966, 18 SCRA 86, 89, where this language was

used: The present Civil Code in force (Art. 335) only disqualifies from being adopters aliens

that are either (a) non-residents or (b) who are residents but the Republic of the Philippines has

broken diplomatic relations with their Government. Outside of these two cases, alienage by itself

alone does not disqualify a foreigner from adopting under our laws.

_______________ [Brehm vs. Republic, 9 SCRA 172(1963)]